Opinion 5/2019 On The Interplay Between The EPrivacy Directive And The .
Opinion 5/2019 on the interplay between the ePrivacyDirective and the GDPR, in particular regarding thecompetence, tasks and powers of data protectionauthoritiesAdopted on 12 March 2019adopted1
TABLE OF CONTENTS1Summary of the facts . 42Legal Context . 532.1Relevant provisions of the GDPR. 52.2Relevant provisions of the Framework Directive . 62.3Relevant provisions of the ePrivacy Directive . 6Scope of this opinion . 83.1Matters outside the scope of the GDPR . 93.2Matters outside the scope of the ePrivacy Directive . 93.2.1The general material scope of the ePrivacy Directive . 93.2.2The extended material scope of articles 5(3) and 13 ePrivacy Directive . 113.345Matters within the material scope of both the ePrivacy Directive and the GDPR . 11Interplay between the ePrivacy DirEctive and the GDPR . 134.1“To particularise” . 134.2“To complement” . 144.3The meaning of article 95 GDPR. 144.4Co-existence . 15On the competence, tasks and powers of data protection authorities . 165.1Enforcement of the GDPR . 175.2Enforcement of the ePrivacy Directive. 185.3Enforcement where GDPR and ePrivacy intersect . 195.3.1Question one: are certain processing operations “off limits” for data protectionauthorities? . 195.3.2Question two: Are national ePrivacy provisions “off limits”? . 216On the applicability of the cooperation and consistency mechanisms . 237Conclusion . 24adopted2
The European Data Protection BoardHaving regard to article 63 and article 64(2) of the Regulation 2016/679/EU of the European Parliamentand of the Council of 27 April 2016 on the protection of natural persons with regard to the processingof personal data and on the free movement of such data, and repealing Directive 95/46/EC (hereinafter“GDPR”),Having regard to the EEA Agreement and in particular to Annex XI and Protocol 37 thereof, as amendedby the Decision of the EEA joint Committee No 154/2018 of 6 July 2018,Having regard to article 10 and article 22 of its Rules of Procedure of 25 May 2018, as amended on 23November 2018,Whereas:(1) The main role of the European Data Protection Board (hereafter the Board) is to ensure theconsistent application of the Regulation 2016/679 (here after GDPR) throughout the EuropeanEconomic Area. Article 64(2) GDPR provides that any supervisory authority, the Chair of the Board orthe Commission may request that any matter of general application or producing effects in more thanone Member State be examined by the Board with a view to obtaining an opinion. The aim of thisopinion is to examine a matter of general application or which produces effects in more than oneMember State.(2) On 3 December 2018, the Belgian Data Protection Authority requested the European DataProtection Board to examine and issue an Opinion on the interplay between the GDPR and the ePrivacyDirective, in particular regarding the competence, tasks and powers of data protection authorities.(3) The opinion of the Board shall be adopted pursuant to article 64(3) GDPR in conjunction with article10 (2) of the Rules of Procedure within eight weeks from the first working day after the Chair and thecompetent supervisory authority have decided that the file is complete. Upon decision of the Chair,this period may be extended by a further six weeks taking into account the complexity of the subjectmatter.HAS ADOPTED THE FOLLOWING OPINION:adopted3
1 SUMMARY OF THE FACTS1.On 3 December 2018, the Belgian DPA requested the European Data Protection Board to examine andissue an opinion on the interplay between the ePrivacy Directive1 and the GDPR, submitting thefollowing questions :a. Regarding the competence, tasks and powers of data protection authorities2, whetheri. data protection authorities are able or not able to exercise their competence, tasks andpowers in relation to processing that triggers, at least in relation to certain processingoperations, the material scope of both the GDPR and the ePrivacy Directive; and if so,whetherii. data protection authorities may or should take into account provisions of the ePrivacyDirective and/or its national implementations when exercising their competences, tasks andpowers under the GDPR (e.g., when assessing the lawfulness of processing) and if so, to whatextent.b. whether the cooperation and consistency mechanisms can or should be applied in relation toprocessing that triggers, at least in relation to certain processing operations, the material scopeof both the GDPR and the ePrivacy Directive; andc. the extent to which processing can be governed by provisions of both the ePrivacy Directiveand the GDPR and whether or not this affects the answers to questions 1 and 2.2.The Board considers that these questions concern a matter of general application of the GDPR, as thereis a clear need for a consistent interpretation among data protection authorities on the boundaries oftheir competences, tasks and powers. Clarification is particularly needed to ensure, amongst other, aconsistent practice of mutual assistance in accordance with article 61 of the GDPR and joint operationsin accordance with article 62 of the GDPR.3.This opinion does not relate to any such division of competences, tasks and powers of data protectionauthorities under the proposal for the ePrivacy Regulation.1Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processingof personal data and the protection of privacy in the electronic communications sector (Directive on privacy andelectronic communications) as amended by Directive 2006/24/EC and Directive 2009/136/EC.2As set forth by articles 55-58 GDPR. The term “data protection authorities” (as opposed to “supervisoryauthorities”) shall be used throughout this Opinion in order to clearly distinguish the “supervisory authorities”envisaged by the GDPR from other types of supervisory authorities, such as the national regulatory authoritiesmentioned in Directive 2002/58/EC.adopted4
2 LEGAL CONTEXT2.1 Relevant provisions of the GDPR4.According to article 2(1), the GDPR applies to “the processing of personal data wholly or partly byautomated means and to the processing other than by automated means of personal data which formpart of a filing system or are intended to form part of a filing system.”Article 2(2) of the GDPR states that the GDPR shall not apply to the processing of personal data:“(a) in the course of an activity which falls outside the scope of Union law;(b) by the Member States when carrying out activities which fall within the scope of Chapter 2of Title V of the TEU;(c) by a natural person in the course of a purely personal or household activity;(d) by competent authorities for the purposes of the prevention, investigation, detection orprosecution of criminal offences or the execution of criminal penalties, including thesafeguarding against and the prevention of threats to public security”.5.Article 5, entitled “Principles relating to the processing of personal data”, contains the principlesapplicable to any processing of personal data, including the requirement that any processing ofpersonal data shall be lawful and fair.3 Article 6 describes the circumstances in which processing ofpersonal data shall be lawful, one of which relates to the consent of the data subject. Article 7 furtherspecifies the conditions for valid consent within the meaning of the GDPR.46.Article 51(1) sets forth the legal mandate of data protection authorities, which is to monitor theapplication of the GDPR in order to protect the fundamental rights and freedoms of natural persons inrelation to processing and to facilitate the free flow of personal data within the Union. Articles 55, 57and 58 specify the competences, tasks and powers of each data protection authority. Chapter VII ofthe GDPR, entitled ‘Cooperation and Consistency’, specifies the different ways in which data protectionauthorities shall cooperate in order to contribute to a consistent application of the GDPR.7.Article 94, entitled ‘Repeal of Directive 95/46’, states that“1.Directive 95/46/EC is repealed with effect from 25 May 2018.2.References to the repealed Directive shall be construed as references to this Regulation.References to the Working Party on the Protection of Individuals with regard to the Processingof Personal Data established by Article 29 of Directive 95/46/EC shall be construed asreferences to the European Data Protection Board established by this Regulation.”3See also recital (39) GDPR (“Any processing of personal data should be lawful and fair. [ ]”).See the WP29 Guidelines on consent under Regulation 2016/679, WP259 rev.01, endorsed by the EDPB on 25May 2018.4adopted5
8.Article 95, entitled ‘Relationship with Directive 2002/58/EC’, stipulates that“This Regulation shall not impose additional obligations on natural or legal persons in relationto processing in connection with the provision of publicly available electronic communicationsservices in public communication networks in the Union in relation to matters for which theyare subject to specific obligations with the same objective set out in Directive 2002/58/EC.”9.Recital (173) of the GDPR stipulates that:“(173) This Regulation should apply to all matters concerning the protection of fundamentalrights and freedoms vis-à- vis the processing of personal data which are not subject to specificobligations with the same objective set out in Directive 2002/58/EC of the European Parliamentand of the Council, including the obligations on the controller and the rights of natural persons.In order to clarify the relationship between this Regulation and Directive 2002/58/EC, thatDirective should be amended accordingly. Once this Regulation is adopted, Directive2002/58/EC should be reviewed in particular in order to ensure consistency with thisRegulation.”2.2 Relevant provisions of the Framework Directive10.Article 2(g) of the Framework Directive5 defines a ‘national regulatory authority’ as“the body or bodies charged by a Member State with any of the regulatory tasks assigned inthis Directive and the Specific Directives.”11.Article 2(l) of the Framework Directive states that‘‘’Specific Directives’ means Directive 2002/20/EC (Authorisation Directive), Directive2002/19/EC (Access Directive), Directive 2002/22/EC (Universal Service Directive) and Directive2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning theprocessing of personal data and the protection of privacy in the electronic communicationssector (Directive on privacy and electronic communications).”12.Article 3(1) of the Framework Directive provides that“Member States shall ensure that each of the tasks assigned to national regulatory authoritiesin this Directive and the Specific Directives is undertaken by a competent body.”2.3 Relevant provisions of the ePrivacy Directive13.Article 1(2) of the ePrivacy Directive stipulates that“The provisions of this Directive particularise and complement [Regulation (EU) 2016/679] forthe purposes mentioned in paragraph 1. Moreover, they provide for protection of thelegitimate interests of subscribers who are legal persons.”65Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a commonregulatory framework for electronic communications networks and services (Framework Directive).6In accordance with article 94(2) of the GDPR, all references to Directive 95/46 in the ePrivacy Directive havebeen replaced with “[Regulation (EU) 2016/679]” and references to the “Working Party on the Protection ofIndividuals with regard to the Processing of Personal Data instituted by Article 29 of Directive 95/46/EC” havebeen replaced with “[European Data Protection Board]”.adopted6
14.Article 2(f) of the ePrivacy Directive states that“‘consent’ by a user or subscriber corresponds to the data subject's consent in [Regulation (EU)2016/679]”15.Article 15(2) of the ePrivacy Directive stipulates that“The provisions of [Chapter VIII on remedies, liability and penalties] of [Regulation (EU)2016/679] shall apply with regard to national provisions adopted pursuant to this Directive andwith regard to the individual rights derived from this Directive.”16.Article 15(3) of the ePrivacy Directive stipulates that“The [European Data Protection Board] shall also carry out the tasks laid down in [Article 70 ofRegulation (EU) 2016/679] with regard to matters covered by this Directive, namely theprotection of fundamental rights and freedoms and of legitimate interests in the electroniccommunications sector.”17.Article 15a, entitled ‘Implementation and enforcement’, stipulates that“1. Member States shall lay down the rules on penalties, including criminal sanctions whereappropriate, applicable to infringements of the national provisions adopted pursuant to thisDirective and shall take all measures necessary to ensure that they are implemented. [ ]2. Without prejudice to any judicial remedy which might be available, Member States shallensure that the competent national authority and, where relevant, other national bodies havethe power to order the cessation of the infringements referred to in paragraph 1.3. Member States shall ensure that the competent national authority and, where relevant,other national bodies have the necessary investigative powers and resources, including thepower to obtain any relevant information they might need to monitor and enforce nationalprovisions adopted pursuant to this Directive.4. The relevant national regulatory authorities may adopt measures to ensure effective crossborder cooperation in the enforcement of the national laws adopted pursuant to this Directiveand to create harmonised conditions for the provision of services involving cross-border dataflows.The national regulatory authorities shall provide the Commission, in good time before adoptingany such measures, with a summary of the grounds for action, the envisaged measures and theproposed course of action. The Commission may, having examined such information andconsulted ENISA and the [European Data Protection Board], make comments orrecommendations thereupon, in particular to ensure that the envisaged measures do notadversely affect the functioning of the internal market. National regulatory authorities shalltake the utmost account of the Commission's comments or recommendations when decidingon the measures.”18.Recital (10) of the ePrivacy Directive states that“In the electronic communications sector, [Regulation (EU) 2016/679] applies in particular toall matters concerning protection of fundamental rights and freedoms, which are notspecifically covered by the provisions of this Directive, including the obligations on thecontroller and the rights of individuals. [Regulation (EU) 2016/679] applies to non-publiccommunications services.”adopted7
3 SCOPE OF THIS OPINION19.The GDPR has the objective to protect fundamental rights and freedoms of natural persons and inparticular their right to the protection of personal data and to ensure the free movement of personaldata within the Union.7 To achieve this objective, the GDPR lays down common rules on dataprocessing, so as to ensure consistent effective protection of personal data throughout the Union andto prevent divergences hampering the free movement of personal data within the internal market.The rules serve to ensure a balance between the (potential) benefits of data processing and the(potential) drawbacks.20.The ePrivacy Directive has the objective to harmonise the national provisions required to ensure anequivalent level of protection of fundamental rights and freedoms, and in particular the right to privacyand confidentiality, with respect to the processing of personal data in the electronic communicationsector and to ensure the free movement of such data and of electronic communication equipment andservices in the Community.8 The ePrivacy Directive seeks therefore to ensure respect for the rights setout in articles 7 and 8 of the Charter. In this regard, the ePrivacy Directive aims to “particularise andcomplement” the provisions of the GDPR, with respect to the processing of personal data in theelectronic communication sector.921.The questions referred to the Board are limited to processing that triggers the material scope of boththe GDPR and the ePrivacy Directive. In order to further clarify the scope of this opinion, the followingsections clarify: where there is no interplay between the GDPR and the ePrivacy Directive because the matterfalls outside of the scope of the GDPR;where there is no interplay between the GDPR and the ePrivacy Directive because the matterfalls outside of the scope of the ePrivacy Directive; andwhere there is an interplay between the GDPR and the ePrivacy Directive because theprocessing triggers the material scope of both the GDPR and the ePrivacy Directive.7Article 1 of the GDPR.Article 1(1) of the ePrivacy Directive.9Article 1(1)-(2) of the ePrivacy Directive, to be read in light of article 94(2) GDPR.8adopted8
3.122.Matters outside the scope of the GDPRIn principle, the material scope of the GDPR covers any form of processing of personal data, regardlessof the technology used.10 The GDPR shall not be applicable when: 3.223.no personal data are being processed (e.g. a phone number of an automated customer serviceof a legal person, or the IP address of a digital photocopier in a corporate network do notconstitute personal data);the activities fall outside of the material scope of the GDPR, taking into account article 2(2)and (3) GDPR; orthe activities fall outside the territorial scope of the GDPR.11Matters outside the scope of the ePrivacy DirectiveA particularity of the ePrivacy Directive is that two of its provisions have a wider scope of applicationthan the other provisions, for which the scope of application is limited to the provision of publiclyavailable electronic communications services in public communications networks. Consequently, asoutlined in the following sections, two questions need to be answered to determine whether anactivity falls inside or outside the material scope of the ePrivacy Directive.3.2.1 The general material scope of the ePrivacy Directive24.According to its article 3, the ePrivacy Directive applies to “the processing of personal data inconnection with the provision of publicly available electronic communications services in publiccommunications networks in the Community, including public communications networks supportingdata collection and identification devices”.25.As such, the ePrivacy Directive in first instance addresses publicly available electronic communicationservices and electronic communication networks.12The Electronic Communications Code13 provides that services which are functionally equivalent toelectronic communications services are covered.10See also recital (46) of the ePrivacy Directive.Article 3 GDPR. See EDPB Guidelines 3/2018 on the territorial scope of the GDPR (Article 3), 16 November2018.12Commission Staff Working Document, Ex-post REFIT evaluation of the ePrivacy Directive 2002/58/EC, COMSWD(2017)005 report, p. 20 ; Report to the Commission “ePrivacy Directive: assessment of transposition,effectiveness and compatibility with proposed Data Protection Regulation”, SMART 2013/0071, p. 24 ff.13Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing theEuropean Electronic Communications Code.11adopted9
26.27.For purposes of its general material scope, the ePrivacy Directive applies when each of the followingconditions are met: there is an electronic communications service (ECS)14; this service is offered over an electronic communications network15; the service and network are publicly available16; the service and network are offered in the EU.Activities which do not meet all of the above criteria are generally out of scope of the ePrivacyDirective.Examples:A corporate network which is accessible only to employees for professional purposes does notconstitute a “publically available” electronic communications service. As a result, the transmission oflocation data via such a network does not fall inside the material scope of the ePrivacy Directive 17A clock synchronisation service sends a signal over an electronic communications network to all clockswhich adhere to its synchronisation protocol (undetermined number of recipients). This service is abroadcast service instead of a communication service in the current context and would also fall outsidethe material scope of the ePrivacy Directive.14Article 2(d) ePrivacy Directive specifies that ‘communication’ means “any information exchanged or conveyedbetween a finite number of parties by means of a publicly available electronic communications service” andexcludes broadcasting services which may - in theory - reach an unlimited audience. The term ‘electroniccommunications service’ is currently defined by article 2(d) Framework Directive, though with effectfrom 21 December 2020 it shall be defined by article 2(4) of the Electronic Communications Code.15‘Electronic communications network’ is currently defined by article 2(a) Framework Directive, though witheffect from 21 December 2020 it shall be defined by article 2(1) of the Electronic Communications Code.16A service for the public is a service available to all members of the public on the same basis, and not onlypublicly owned services. Compare: EDPS, Opinion 5/2016, Preliminary EDPS Opinion on the review of theePrivacy Directive (2002/58/EC), p. 12 and Communication by the Commission to the European Parliament andthe Council on the status and implementation of Directive 90/388/EEC on competition in the markets fortelecommunications services, COM(95) 113 final, 04.04.1995, p. 14.17Commission Staff Working Document, Ex-post REFIT evaluation of the ePrivacy Directive 2002/58/EC, COMSWD(2017)005 report, p. PDF/?uri CELEX:52017SC0005&from EN; Report to theCommission “ePrivacy Directive: assessment of transposition, effectiveness and compatibility with proposedData Protection Regulation”, SMART 2013/0071, p. 10
3.2.2 The extended material scope of articles 5(3) and 13 ePrivacy Directive28.The overarching aim of the ePrivacy Directive is to ensure the protection of fundamental rights andfreedoms of the public when they make use of electronic communication networks.18 In light of thisaim, articles 5(3) and 13 of the ePrivacy Directive apply to providers of electronic communicationservices as well as website operators (e.g. for cookies) or other businesses (e.g. for direct marketing).19Examples:Search engine services which store or access cookies on the device of a user fall within the extendedmaterial scope of article 5(3) ePrivacy Directive.20Unsolicited electronic mail sent by a website operator for the purposes of direct marketing also fallwithin the extended material scope of article 13 ePrivacy Directive.213.3 Matters within the material scope of both the ePrivacy Directive and the GDPR29.There are many examples of processing activities which trigger the material scope of both the ePrivacyDirective and the GDPR. A clear example is the use of cookies. In its opinion on online behavioraladvertising, the Article 29 Working Party stated that“If as a result of placing and retrieving information through the cookie or similar device, theinformation collected can be considered personal data then, in addition to Article 5(3),Directive 95/46/EC will also apply.”2230.Case law of the Court of Justice of the European Union (CJEU) confirms that it is possible for processingto fall within the material scope of both the ePrivacy Directive and the GDPR at the same time. InWirtschaftsakademie23, the CJEU applied Directive 95/46/EC notwithstanding the fact that theunderlying processing also involved processing operations falling into the material scope of theePrivacy Directive. In the pending Fashion ID case, the Advocate General expressed the view that bothset of rules may be applicable in a case involving social plug-ins and cookies.2431.Whilst the GDPR replaced Directive 95/46/EC on 25 May 2018, the analysis undertaken by the CJEUand the Article 29 Working Party according to which both legal acts may apply at the same time are18Article 1(1) ePrivacy Directive provides: “This Directive provides for the harmonisation of the national provisionsrequired to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular theright to privacy and confidentiality, with respect to the processing of personal data in the electroniccommunication sector and to ensure the free movement of such data and of electronic communication equipmentand services in the Community.”19Article 29 Data Protection Working Party, Opinion 2/2010 on online behavioural advertising, 22 June 2010, WP171, section 3.2.1 p. 9. Opinion 1/2008 on data protection issues related to search engines (WP148), section4.1.3, p. 12. ; Report to the Commission “ePrivacy Directive: assessment of transposition, effectiveness andcompatibility with proposed Data Protection Regulation”, SMART 2013/0071, p. 9.20Opinion 1/2008 on data protection issues related to search engines (WP148), section 4.1.3, p. 1221Opinion 1/2008 on data protection issues related to search engines (WP148), section 4.1.3, p. 12.22Article 29 Data Protection Working Party, Opinion 2/2010 on online behavioural advertising, 22 June 2010, WP171, p. 9. See also Opinion 1/2008 on data protection issues related to search engines (WP148), section 4.1.3, p.12-139.23CJEU, C-210/16, 5 June 2018, C‑210/16, ECLI:EU:C:2018:388. See in particular paragraphs 33-34.24Opinion of Advocate General Bobek in Fashion ID, C-40/17, 19 December 2018, ECLI:EU:C:2018:1039. See inparticular paragraphs 111-115.adopted11
relevant. Recital (30) of the GDPR elaborates on the definition of “online identifiers” in a way thatsupports the interpretation that processing of personal data may trigger the material scope of boththe GDPR and the ePrivacy Directive:“Natural persons may be associated with online identifiers provided by their devices,applications, tools and protocols, such as internet protocol addresses, cookie identifiers orother identifiers such as radio frequency identification tags. This may leave traces which, inparticular when combined with unique identifiers and other information received by theservers, may be used to create profiles of the natural persons and identify them.”32.Worth noting in particular is that ‘IP addresses’ and ‘cookie identifiers’ are mentioned in recital (30),which states that IP addresses and cookie identifiers might be combined with other “uniqueidentifiers” and other information received by the servers to create profiles of natural persons.33.In other words, the GDPR itself explicitly refers, when clarifying its own material scope (the concept ofpersonal data), to processing activities which also trigger, at least in part, the material scope of theePrivacy Directive.34.Another example of an activity which triggers the material scope of both the ePrivacy Directive andthe GDPR is the customer relationship between electronic communications service providers andnatural person that is a user of its services, which involves personal data processing about customerson the one hand, and are also governed by specific rules for instance on subscriber directories,itemised billing, calling line identification. Traffic data and location data generated by electroniccommunications services may also involve personal data processing, insofar as they relate to naturalpersons.35.Finally, article 95 of the GDPR and recital (173) GDPR confirm the lex generalis-lex specialis relationshipbetween the GDPR and the ePrivacy Directive, with article 95 providing that the GDPR shall not imposeadditional obligations on na
of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) as amended by Directive 2006/24/EC and Directive 2009/136/EC. 2 As set forth by articles 55-58 GDPR. The term data protection authorities _ (as opposed to supervisory
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